Dumas v. Social Security Administration, Commissioner of

Filing 21

MEMORANDUM AND ORDER - It is ordered that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) affirming the Commissioners final decision. Signed by District Judge John W. Lungstrum on 12/2/2013. (ses)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Richard Dumas, Jr.
Plaintiff,
v.

Case No. 12-1405-JWL

Carolyn W. Colvin,1
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM & ORDER
Plaintiff Richard Dumas, Jr. brings this action pursuant to 42 U.S.C. § 405(g) seeking
judicial review of the decision of defendant, the Commissioner of Social Security, to deny his
applications for social security disability insurance benefits under Title II of the Social Security
Act and supplemental security income benefits under Title XVI of the Act. According to
plaintiff, defendant erred by concluding that plaintiff could perform his past relevant work
without first determining the actual physical and mental demands of plaintiff’s past relevant
work. As explained in more detail below, the court rejects plaintiff’s argument and affirms
defendant’s decision.

I.

1

Procedural Background

On February 14, 2013, Ms. Colvin became Acting Commissioner of Social Security and the
court thus substitutes Ms. Colvin for Commissioner Michael J. Astrue as the defendant. See
Fed. R. Civ. P. 25(d)(1).

On May 1, 2009, plaintiff filed applications for disability insurance benefits and
supplemental security income benefits, alleging disability beginning in November 2007 due to
depression, anger problems, a back injury and migraine headaches. Beginning in July 2009,
plaintiff also alleged disability due to a dislocated hip, liver and kidney failure due to hepatitis C
and a scalp injury. The applications were denied both initially and upon reconsideration. At
plaintiff’s request, an administrative law judge (“ALJ”) held a hearing on April 11, 2011, at
which both plaintiff and his counsel were present via video.2 On May 16, 2011, the ALJ
rendered a decision in which he determined that plaintiff was not under a “disability” as defined
by the Social Security Act from November 1, 2007 through the date of the decision.3
Consequently, the ALJ denied all benefits to plaintiff. After the ALJ’s unfavorable decision,
plaintiff requested review by the Appeals Council. The Appeals Council denied plaintiff’s
request for review on August 27 2012, rendering the ALJ’s decision the final decision of
defendant.

II.

Standard of Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether defendant’s decision is

supported by substantial evidence in the record as a whole and whether defendant applied the
correct legal standards. See Wells v. Colvin, 727 F.3d 1061, 1067 (10th Cir. 2013) (citing
Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010)). The Tenth Circuit has defined
2

Plaintiff and his counsel appeared in Kansas City, Missouri and the ALJ presided over the
hearing from Albuquerque, New Mexico.
3

Plaintiff met the insured status requirements of the Social Security Act through March 31,
2011.
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“substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Wilson, 602 F.3d at 1140). In the course of its review, the
court may not reweigh the evidence or substitute its judgment for that of defendant. Cowan v.
Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008).

III.

Relevant Framework for Analyzing Claim of Disability and the ALJ’s Findings
A “disability” for purposes of the Social Security Act requires both the “inability to

engage in any substantial gainful activity” and “a medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” Bussell v. Astrue, 463 Fed. Appx. 779,
781 (10th Cir. 2012) (quoting 42 U.S.C. § 423(d)(1)(A)). The Social Security Act further
provides that an individual “shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy.” Wilson, 602 F.3d
at 1140 (quoting Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §
423(d)(2)(A), 1382c(a)(3)(B))).
The Social Security Administration has established a five-step sequential evaluation
process for determining whether a claimant is disabled, see id. at 1139, and the ALJ in this case
followed the five-step process. If a determination can be made at any of the steps that a
claimant is or is not disabled, evaluation under a subsequent step is not necessary. Id. Step one
requires the claimant to show that he or she is not presently engaged in substantial gainful
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activity. Id. Here, the ALJ determined that plaintiff was not engaged in substantial gainful
activity and, thus, properly proceeded to the second step. The second step of the evaluation
process involves a determination of whether “the claimant has a medically severe impairment or
combination of impairments” that significantly limits his or her ability to perform basic work
activities. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citing 20 C.F.R. § 404.1521).
The ALJ in this case concluded that plaintiff had several severe impairments for purposes of the
regulations, including depressive disorder; alcohol abuse/dependence in remission; cocaine and
marijuana abuse “in alleged remission;” borderline intellectual functioning; lumbar and right hip
arthralgia; cephalgias; and Hepatitis C with liver fibrosis. Thus, the ALJ proceeded to step
three.
In step three, the ALJ determines whether the impairment “is equivalent to one of a
number of listed impairments that the Commissioner acknowledges are so severe as to preclude
substantial gainful activity.” Best-Willie v. Colvin, 514 Fed. Appx. 728, 733 (10th Cir. 2013).
“If the impairment is listed and thus conclusively presumed to be disabling, the claimant is
entitled to benefits.” Id. If not, the evaluation proceeds to the fourth step, where the claimant
must show that the “impairment or combination of impairments prevents him from performing
his [or her] past work.” Wilson, 602 F.3d at 1139 (quoting Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007)). With respect to the third step of the process in this case, the ALJ determined
that plaintiff’s impairments were not listed or medically equivalent to those listed in the relevant
regulations.
At the fourth step, the ALJ determined that plaintiff retained the residual functional
capacity (RFC) for light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except
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that he was limited to occasional climbing of ramps and stairs and could not climb ladders, ropes
or scaffolds. The ALJ further concluded that plaintiff was limited to occasional balancing,
stooping, crouching, kneeling, and crawling; had to avoid work with concentrated exposure to
pulmonary irritants, hazardous conditions, unprotected heights and hazardous machinery; was
limited to tasks that could be learned in 30 days or less involving no more than simple workrelated decisions with few work place changes and no more than occasional interaction with the
public, coworkers or supervisors. Based on evidence adduced at the hearing from a vocational
expert (VE), the ALJ concluded that plaintiff, with those limitations, could perform his past
relevant work “as actually and generally performed” and that, accordingly, he was not disabled
under the Social Security Act.

IV.

Analysis of Plaintiff’s Specific Argument
In his motion, plaintiff contends only that defendant erred by concluding that plaintiff

could perform his past relevant work without first determining the actual physical and mental
demands of plaintiff’s past relevant work as he performed it. See Winfrey v. Chater, 92 F.3d
1017, 1024-25 (10th Cir. 1996) (ALJ must make findings about physical and mental demands of
claimant’s past relevant work). Specifically, plaintiff complains that the ALJ made no findings
about the mental aspects of plaintiff’s job—particularly the amount of interaction that plaintiff
had with his co-workers on the assembly line. Plaintiff suggests that his work actually required
more than occasional interaction with others (but points to no evidence supporting this
suggestion) such that he could not return to his job with the RFC assigned to him by the ALJ but

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that the ALJ never made any findings about the amount of time that plaintiff actually spent
interacting with co-workers on the line.
The court rejects this argument. Relying on the Dictionary of Occupational Titles, the
ALJ asked plaintiff’s counsel during the hearing whether the “bottling line attendant” job, DOT
920.687-042, was an accurate assessment of plaintiff’s past relevant work. Plaintiff’s counsel
stipulated that DOT 920.687-042 accurately reflected plaintiff’s job. In light of this stipulation,
the ALJ was not required to make specific findings concerning the physical and mental demands
of plaintiff’s past relevant work as actually performed. Rather, the ALJ properly noted in her
decision that plaintiff’s counsel had stipulated that the line attendant position as described in the
DOT accurately represented plaintiff’s past work. See Cochran v. Astrue, 2013 WL 550488, at
*2 (W.D. Mo. Feb. 13, 2013) (ALJ properly determined demands of plaintiff’s past relevant
work where ALJ referred to DOT in decision and attorney stipulated that job as described in
DOT was an accurate reflection of plaintiff’s past relevant work); Pierce v. Astrue, 2008 WL
4373036, at *12-13 (E.D. La. Sept. 22, 2008) (same).
DOT 920.687-042 describes in detail the mental demands of the bottling line attendant
position (including an indication that interaction with people is “not significant”4) and plaintiff’s
stipulation that the description accurately reflected his work as a bottling line attendant
forecloses an argument that the ALJ failed to make findings regarding the demands of the line

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The DOT gives the line attendant position a “people” rating of 8, which means that it requires
“taking instructions-helping” by “attending to the work assignment instructions or order of
supervisor” with “no immediate response required unless clarification of instructions or orders is
needed.” See DOT, Appendix B, 1991 WL 688701.
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attendant position.5 Plaintiff does not challenge the ALJ’s finding that plaintiff was limited to
occasional interaction with people and he points to no evidence that his job required more than
occasional interaction with people. Moreover, the court fails to see any conflict (and plaintiff
points to none) between the DOT description of the line attendant position and plaintiff’s
restriction to occasional interaction with the public, co-workers or supervisors. Stated another
way, there is no evidence before the court that the line attendant position exceeded plaintiff’s
limitations in any respect. Plaintiff, then, has not demonstrated any error in connection with the
ALJ’s findings concerning the physical and mental demands of the line attendant position as
performed by plaintiff.
In any event, even assuming the ALJ erred in failing to make specific findings
concerning the demands of plaintiff’s past relevant work as actually performed, any error is
harmless in light of the ALJ’s conclusion that plaintiff could return to his job as a bottling line
attendant as that job is generally performed in the national economy—a conclusion that plaintiff
does not challenge (and, in fact, could not challenge in light of the stipulation that the DOT
description accurately described the position). The ALJ based her conclusion that plaintiff could
perform the position as generally performed in the national economy on the VE’s response to a
hypothetical question involving an individual with an RFC matching plaintiff’s RFC. Plaintiff
does not challenge the RFC; the VE’s qualifications; or otherwise challenge the expert’s
testimony on this issue or the ALJ’s interpretation of that testimony. Thus, because plaintiff
5

The stipulation made by plaintiff’s counsel distinguishes this case from those relied upon by
plaintiff. See Frantz v. Astrue, 509 F.3d 1299, 1303-04 (10th Cir. 2007) (reversing and
remanding where ALJ did not make any findings or develop evidence regarding the physical and
mental demands of plaintiff’s past work either as she did it or as it is typically performed in the
national economy); Clardy v. Barnhart, 2004 WL 737486, at *6 (D. Kan. Apr. 5, 2004) (same).
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undisputedly could perform his past relevant work as it was performed in the national economy,
any error concerning whether plaintiff could perform his past relevant work as he had actually
performed it is irrelevant. See Barker v. Astrue, 459 Fed. Appx 732, 741-42 (10th Cir. 2012);
Chappell v. Chater, 1996 WL 597796, at * (10th Cir. Oct. 18, 1996) (ALJ may elicit
information about the demands of plaintiff’s past work either as he actually performed it or as it
is generally performed in the national economy); Townsend v. Chater, 1996 WL 366207, at *2
(10th Cir. July 1, 1996) (ALJ not required to determine whether claimant can return to past
relevant work as actually performed by claimant; it is sufficient to find that claimant can return
to past relevant work as generally performed).
In sum, having carefully reviewed the record in this case and having considered
plaintiff’s arguments in light of the record, the court concludes that substantial evidence
supports defendant’s decision to deny Mr. Dumas’s application for disability benefits and
supplemental security income benefits and that no deviation from established legal standards
occurred.

IT IS THEREFORE ORDERED BY THE COURT THAT judgment shall be entered
pursuant to the fourth sentence of 42 U.S.C. § 405(g) affirming the Commissioner’s final
decision.

IT IS SO ORDERED.

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Dated this 2nd day of December, 2013, at Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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